In re Disqualification of Lewis

• Decision Date: 26 July 2004
• Docket Number: No. 04-AP-074.,04-AP-074.
• Citation: 884 N.E.2d 1082,2004 Ohio 7359,117 Ohio St.3d 1227
• Parties: In re DISQUALIFICATION OF LEWIS. Buckingham Coal Co. v. Santo.
• Court: Ohio Supreme Court

884 N.E.2d 1082

117 Ohio St.3d 1227

2004-Ohio-7359

In re DISQUALIFICATION OF LEWIS.

Buckingham Coal Co. v. Santo.

No. 04-AP-074.

Supreme Court of Ohio.

Decided July 26, 2004.

ON AFFIDAVIT OF DISQUALIFICATON in Perry County Court of Common Pleas, No. 03-CV-00252.

MOYER, C.J.

{¶ 1} Attorney Michael Long has filed an affidavit with the Clerk of this court, under R.C. 2701.03, seeking the disqualification of Judge Linton Lewis from acting on any further proceedings in Buckingham Coal Co. v. Santo, case No. 03-CV-00252 in the Court of Common Pleas for Perry County.

{¶ 2} Long alleges that Judge Lewis is biased against Long's co-counsel, Dean Wilson. Wilson serves as the part-time judge of the County Court of Perry County and also practices law with a law firm in Zanesville. Wilson filed the pending suit in Perry County Common Pleas Court on behalf of the plaintiff coal company last year.

{¶ 3} The allegation of bias stems from a criminal case filed against Judge Lewis's brother in the county court over which Wilson presides. Judge Lewis's brother sought Wilson's removal from the case in June of this year, alleging that Wilson was prejudiced against the Lewis family. Wilson recused himself, explaining that there was an appearance of impropriety because he practices law before the defendant's brother. In the entry recusing himself, Wilson acknowledged that in his personal capacity he had expressed his belief that collecting a judicial salary while at the same time receiving state retirement benefits for past judicial service, as Judge Lewis intended to do, was "highly inappropriate." Also in the entry, Wilson rejected the assertion that his private remarks indicated a prejudice against Judge Lewis or his brother.

{¶ 4} The affidavit of disqualification filed here against Judge Lewis asserts that a "tense relationship" now exists between Wilson and Judge Lewis because of the entry mentioned above and because Judge Lewis has made public-record requests for the tape recordings of county-court proceedings in Wilson's courtroom involving Judge Lewis's relatives: his brother and his niece.

{¶ 5} Judge Lewis has responded to the affidavit, and he indicates that he is willing and able to serve fairly and impartially as the judge for this and other cases in which Wilson represents a party. Judge Lewis acknowledges that he and Wilson disagree about the propriety of Ohio judges collecting both a judicial salary and judicial retirement benefits, but he denies that the disagreement affects his ability to preside fairly over this case.

{¶ 6} I find no basis for disqualifying Judge Lewis in this case. Neither the affidavit nor the judge's response points to any hostility on the judge's part toward Wilson or toward the plaintiff, and the judge's mere request for tape recordings of courtroom proceedings involving his relatives is not an act from which I can infer any bias or prejudice against Wilson.

{¶ 7} To be sure, Wilson probably did not endear himself to Judge Lewis by publicly criticizing the possibility that Judge Lewis will collect both a salary and state retirement benefits. And the circumstances of this case demonstrate the problems that can arise from the fact that the law in Ohio allows for part-time judges and" permits lawyers who practice law one day to serve as a judge in the same jurisdiction on another day. In the end, though, the affidavit presents nothing more than Long's subjective belief that Judge Lewis may be biased against Wilson and the plaintiff. Subjective belief of bias is generally not sufficient to support an affidavit of disqualification. Flamm, Judicial Disqualification (1996) 162, Section 5.6.3. See, e.g., Hunt v. Mobil Oil Corp. (S.D.N.Y.1983), 557 F.Supp. 368, 376 ("The test is not the subjective feelings of the plaintiffs").

{¶ 8} The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is, instead, an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality. Canon 3(E)(1) of the Code of Judicial Conduct ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned").

{¶ 9} In this case, Judge Lewis appears to have taken no action and made no comment that might prompt a reasonable and informed observer...